Criminal law, tradition and legal order pptx

DrFarmer uses contemporary social theory to develop an account of therelationship between legal practice and national culture in Scotland,analysing the belief in the distinctive spirit o

which examines, in particular, the relationship between legal traditionand national identity, while developing a radically new approach toquestions of responsibility and subjectivity Previous studies have focusedeither on the philosophical bases of the criminal law or on the sociologyand social history of crime, but there has been little exchange betweenthe two Lindsay Farmer's is one of the first extended attempts to draw

on both fields in order to analyse the body of theorising about thecriminal law as a whole It displays a rare knowledge of the legal,institutional and historical contexts in which criminal law is practised, incombination with an informed understanding of the law itself DrFarmer uses contemporary social theory to develop an account of therelationship between legal practice and national culture in Scotland,analysing the belief in the distinctive spirit or 'genius' of Scots law Anexploration of the boundary between national limits and the universalaspirations of criminal law theory reveals the specifically moderncharacteristics of the criminal law and exposes how contemporarycriminal law theory fundamentally misrepresents the character of moderncriminal justice

Criminal law, tradition and legal order

Crime and the genius of Scots law,

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo Cambridge University Press

The Edinburgh Building, Cambridge CB2 2RU, UK

Published in the United States of America by Cambridge University Press, New York www Cambridge org

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©Lindsay Farmer 1997

First published 1997

This digitally printed first paperback version 2005

A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data

Farmer, Lindsay,

1963-Criminal law, tradition and legal order: crime and the genius of

Scots law, 1747 to the present / Lindsay Farmer.

p cm.

Includes bibliographical references.

ISBN 0 521 55320 2 (hb)

1 Criminal law - Scotland - History 2 Criminal justice,

Administration of- Scotland - History 3 Crime - Scotland - History.

of England; the Courts of criminal jurisdiction being authorised topunish crimes without any positive enactment'.

Lord Justice-Clerk Hope in Rachel Wright (1809) in Burnett 1811, app VII,

p xxix.'And having only designed to establish solidly the Principles of theCriminal Law, I wanted room for treating learnedly each particular case,

or even for hinting at all such cases as may be necessary; And withoutwearying my Readers with Citations, (which was very easie) I havefurnished the Book with as much reason as is ordinarily to be found inlegal treatises' Mackenzie 1678 (The Design)

Acknowledgements page x

1 The boundaries of the criminal law: criminal law, legal theoryand history 1

2 The genius of our law: legality and the Scottish legal tradition 21

3 The judicial establishment: the transformation of criminal

jurisdiction 1747-1908 57

4 The 'well-governed realm': crime and legal order 1747-1908 100

5 The perfect crime: homicide and the criminal law 142

6 Conclusion: crime and the genius of Scots law 175

Bibliography 187 Index 202

IX

In the all too lengthy process of writing and re-writing I have incurred anenormous number of debts, intellectual, emotional and (more often than Iwould have wished) financial I cannot easily repay these, but by theiracknowledgement I can formally record my gratitude to some of thepeople who have responded to my many requests for assistance.The book is based on work done in three institutions, and owes much tothe enduring influence of a fourth It has its specific origins in my initialattempts at teaching criminal law at Strathclyde University Knowing verylittle indeed about the criminal law, I none the less took great liberties inthe teaching of it That anything survived from this at all is due to theforbearance of both students and colleagues While it is difficult to singleout particular people, Joe Thomson and Kenny Miller are owed specialthanks for their confidence in me and their encouragement, and bothcontributed substantially to my enjoyment of my time at Strathclyde Iwas then extremely fortunate to be given the opportunity to work on theScottish criminal law in the unlikely setting of the European UniversityInstitute in Florence My supervisor there, Gunther Teubner, mustfrequently have wondered what he had let himself in for as I presented himwith another chapter on the arcaneries of nineteenth-century Scottishcriminal procedure! I owe much to him for allowing me to define theproject in my own way while also contributing through pushing me totackle unfamiliar ideas Catherine Barnard, John Donaldson, Klaus Eder,Paul McAleavey, Sally Sheldon, Steven Simblett and Arpad Szakolczai,amongst others, contributed in different ways at various times.

The last stages of research and rewriting have been carried out atBirkbeck College Peter Goodrich has been an excellent Head ofDepartment, as well as being extraordinarily generous in reading andcommenting on different versions of the manuscript Matthew Weak hasbeen a good colleague and friend throughout a difficult period, to saynothing of his invaluable knowledge of the criminal law It also gives megreat pleasure to thank Nicola Lacey, now a colleague, whose assistancehas gone well beyond the elucidation and defence of the different types of

reductivism Valerie Hoare, Anton Schiitz and Costas Douzinas have allhelped in different ways.

Finally, I would like to record a long-standing debt to the Centre forCriminology and the Philosophical and Sociological Study of Law at theUniversity of Edinburgh My interest in research was first stimulatedwhile an undergraduate there, and members of the Centre and the LawFaculty encouraged me to continue to study and eventually to undertakethis research Their willingness to read and comment on pieces of work,often at very short notice, and more generally to discuss historical andtheoretical ideas has continually exceeded what I would have beenentitled to expect I would particularly like to thank John Cairns forsharing his unparalleled knowledge of early Scots law To mentionBeverley Brown's contribution in reading and commenting on themanuscript in various forms alone would not begin to do justice to thegenerosity and encouragement she has shown towards me for many years.Peter Young has been encouraging and generous over a long period oftime His advice on research and writing greatly simplified the process Hewas co-supervisor of the original thesis and helped enormously in theproject at all stages from the original proposal through to the final versions

of the manuscript He was trusting in allowing me to define the project in

my own way, and encouraging at the times when I was stuck Morerecently he has helped with invaluable advice on publication I wouldnever have reached this point without him

There are two other people who deserve special mention Sean Smithhas been a good friend for a number of years, and many of the ideas in thebook have their origins in conversations with him I would thank him forhis interest and his friendship Paula Cardoso made the book in manyother ways She suffered with me, and because of me, throughout the

process of writing She taught me the meaning of saudades I thank her

now for everything that she gave

I would like to record my gratitude to the Trustees of the National Library

of Scotland for their permission to use the print of James McKean at theBar on the cover of the book

criminal law, legal theory and history

You will permit me however very briefly to describe, rather what Iconceive an academical expounder of the laws should do, than what Ihave ever known to be done He should consider his course as ageneral map of the law, marking out the shape of the country, itsconnexions and boundaries, it's greater divisions and principal cities: it isnot his business to describe minutely the subordinate limits, or to fix thelongitude and latitude of every inconsiderable hamlet His attentionshould be engaged 'in tracing out the originals and as it were theelements of the law'.1

The need to talk about and establish boundaries is perhaps stronger inrelation to the criminal law than any other area of law The field ofcriminal law marks itself out by its history of preoccupation with limits - ofthe law, of the sanction, of criminalisation These images of space andlandscape continue with descriptions of the contours of liability, the field

of punishment, the frontiers of criminality, or the territory of the law It isthus appropriate that we should begin with a passage from Blackstone's

Commentaries that recognises, in a particularly elegant manner, the

significance of boundaries and divisions It is rarely referred to now, butBlackstone's exposition of the common law of crime has been of enduringimportance to modern ideas about the law.2 Equally, it is far frominappropriate that a study which takes the Scottish criminal law - law fromover the border - as its subject should begin with the writings of a manconventionally regarded as a founder of the English common law andperhaps its greatest 'academical expounder' Scots lawyers have consist-ently underestimated the influence of English law in this area, in

1 Blackstone 1765 I, p 35; cf Kames 1792: 'Law, like geography, is taught as if it were a collection of facts merely: the memory is employed to the full rarely the judgement' Cf also Austin 1885, p 1082.

2 'Since the publication of Blackstone's Commentaries hardly any work has been published in

England upon the Criminal Law which aims at being more than a book of practice simply compilations of extracts from text-writers, and reports arranged with greater or less skill - usually with almost none - but representing the aggregate result of a great deal of laborious drudgery' Stephen 1883 II, pp 218-19.

1

preference for the more reassuring belief that Scots criminal law is a purelynative product There will be much to say about this in due course, but theimmediate interest lies in the suggestive use of the metaphor of the map,rather than in questions of the origins of substantive law, for it points totwo issues which lie at the heart of the argument of this book.

The first of these is the connection that is drawn between the law andphysical space The power of law is a territorial question This is anobvious point but its significance should not be underestimated Geo-graphical boundaries are never only natural; they are the point at whichnations, and national legal competences, begin and end.3 The law drawsphysical boundaries in geographical space, shaping and giving identity tothat space It is thus that the territory of the law is formed: its jurisdiction

It is co-extensive with that geographical space, while sharing none of itsphysical features Jurisdiction is divided into political and administrativeunits, drawing further boundaries between the competences of differentregions and areas of law Although recent writings have tended to treatthese as subordinate questions, legal sovereignty means nothing withoutthese physical aspects of space and organisation.4 The study of the law,then, is not something that can be abstracted from the history of thedrawing of these boundaries, or indeed the law's connection with aparticular physical space To study the law is to raise continually thequestion of how legal structures are built, how lines of communication aredrawn, how powers and competences are spatially distributed In short, it

is to ask how the force of the law is maintained And the answers to thesequestions are connected to, and reveal, the changing contours of authorityand shifting landscapes of power The law, it must be remembered, isalways also the law of the land

It follows from this, as Blackstone points out, that the process ofexpounding the law is a process of mapping.5 This is to acknowledge, as hewas clearly aware, that the law is always also a process of representation-itcan never lose its metaphorical character Just as maps recreate space bythe use of imaginary or scientific devices, the law, in the form of doctrine

or academic treatises, must be capable of representing itself Legaldoctrine is a guide, not to the geographical territory, but to the territory ofthe law, to the imaginary space that the law occupies From their earliest

3 This, of course, is to recall Pascal 'A funny justice that ends at a river! Truth on this side of the Pyrenees, error on that', quoted in Teubner 1989a, p 414 where this is discussed as a problem of 'interlegality'.

4 On the absence of the element of 'territoriality' from legal and political theory, see Baldwin

1992 at pp 207-14.

5 For a more detailed exploration of cartography and mapping in relation to the law, see

Goodrich 1990 passim; Sousa Santos 1987 Generally on the relationship between law and

geography, see Blomley 1994.

days law students are taught that to venture into this territory without amap is foolhardy It is vast and ancient, full of unseen dangers It ispossessed of a strange and wonderful beauty that cannot be perceived bythe untrained eye The law as it is taught and written is always an attempt

to impose an order on this unruly country by marking out the 'greaterdivisions and principal cities' It is always the result of a process ofselection, and the symbolic order that is constructed mirrors, or moreprecisely refracts, the legal ordering of space These guides show us cities

of elegant buildings neatly dissected by wide avenues Or perhaps, in thecase of the common law, the sleepy quarters of faded towns whererambling old buildings, rebuilt and extended time after time, reveal worncharms.6 But what lies in the shaded areas of the map, in the slums androokeries? What network of pipes and passages lies under our feet? Whichspaces are enclosed and which set free? The map requires us to ask thequestion of what is being represented and why Further, it demands that

we question the measures and divisions that are used, the terms of thelegal order that is being imposed We can never be sure that we are beingshown the most important features of the legal landscape, for a map isreally only an accurate guide to itself Understood in this sense, we can seethat the law is always a distortion - although this is not to imply that it isnecessarily inaccurate or untruthful.7 As with all maps, choices of scaleand projection affect our perception Certain features are placed at thecentre of the map or given greater prominence in relation to others Themechanisms of distortion are not chaotic but determinate, they havedeveloped over time in response to changes in that landscape itself, andthe symbols by which the law is represented carry their own history andsignificance So, in order to understand the law, it is necessary to havesome understanding of how the map is made As the process ofrepresentation, or the imagination of the law, becomes our object of study

we are once again brought up against the boundaries and divisions of thelaw

Crime and the criminal law exercise a boundless fascination for porary society - a fascination which has itself been boundlesslydocumented There have been many explanations offered for this, certain

contem-of which stand out to the lawyer or sociologist, for whom the study contem-ofcrime and the criminal law is understood to offer a passage to the corevalues and preoccupations of any society The crime rate has for a long

6 See e.g Blackstone 1765 III, ch 17; cf Walter Scott on Baron Hume quoted in Stein

1988, p 379, 'the fabric of the law resembles some ancient castle, partly entire, partly ruinous, partly dilapidated, patched and altered during the succession of ages by a thousand additions and combinations' and so on 7 Sousa Santos 1987, p 282.

time been taken to be not only a matter of considerable political and socialconcern, but also a barometer of the health or pathology of a particularsociety The way that a particular society punishes wrongdoers is regarded

as indicating its level of civilisation Restitutive is compared favourablywith repressive punishment The increase in humanity in the trial andpunishment of crime has been almost everywhere treated as a mark ofsocial progress It is notable that this understanding has been underpin-ned by a fundamental and, until recently, unbreakable link between thecriminal law and modernity The modern criminal law has been asso-ciated with the founding of the modern nation state and the emergencefrom the period of absolutism and arbitrariness It is one of the mostpotent symbols of the move towards humanitarianism and rationalism ingovernment, and its failures are correspondingly hard felt The measure-ment and control of crime by means of the criminal law were linked withthe emergence of social statistics and the discipline of sociology Thecrime rate was taken, along with indicators of suicide and mortality, to be

an index of social solidarity, and the criminal law became an instrument inthe fight against crime

However, even as these two modes of thought have dominated thinkingabout crime and the law in the modern period, there have been challenges

to the beliefs that linked modernity with the measured humanity of the law

or that saw the control of crime as a sign of progress Governments haveshown an increased willingness to accept a high crime rate as an inevitableand irremediable fact of social life, and there has been a turn towardsharsher punishments which are not justified in terms of whether or notthey are effective or deter crime, but in terms of an increased punitivenessfor its own sake The fascination with crime remains undiminished, but it

is increasingly regarded as the symbol of failure, loss of control and themalaise of government It is against this background - the loss of faith inthe ability of the law to solve the problem of crime - that this book iswritten It examines critically the nature of the relationship between thecriminal law and modernity by means of a historical reconstruction of theorigins of some of the fundamental concepts and institutions of themodern law It does not join the chorus of advocates of a return to theso-called philosophical or conceptual basics of the law Rather it pursuesthe more radical argument that, through their attachment to thosesupposed basics, criminal lawyers have systematically misunderstood andmisrepresented the nature of the modern law, and that this misunder-standing is an important and unacknowledged feature of the crisis of ideascurrently afflicting criminal justice It is thus an attempt to loosen theconceptual straitjacket that has bound the law, developing a criticalaccount of the emergence of the modern criminal law in order to restore ameans of analysing the criminal law as a historical practice

There has been remarkable revival of interest in theories of the criminallaw and punishment in recent years There is an ever-growing body ofwork that has sought to broaden the narrow technical concerns of criminallawyers, and that also reflects the sense that all is not well in criminaljustice The starting point for most of these texts, whether conventional orcritical, is that there is special relationship, or 'natural affinity' betweencriminal law and moral philosophy Thus, Fletcher's analysis of thecriminal law begins in the following way:

Criminal law is a species of moral and political philosophy Its central question isjustifying the use of the state's coercive power against free and autonomouspersons The link with moral philosophy derives from one answer to the problem

of justifying the use of state power If the rationale or limiting condition of criminalpunishment is personal desert, then legal theory invariably interweaves withphilosophical claims about wrongdoing, culpability, justifying circumstances andexcuses.8

First, the limits of state power must be specified, according to the standard

of the autonomy of the individual; then the criminal law, using the samestandard, can attempt to specify the exact conditions under whichindividuals may be held responsible by the law for their actions It hasfollowed from this that the sphere of the responsibility of the criminal law

is reasonably well defined It is to be regarded as a relatively neutral,conceptual exercise that must define in turn the grounds of individualliability, the actions that are prescribed by law and the socially importantvalues (such as bodily autonomy and property) that must be protected bythe law

This same relationship - viewed in a rather different light - has beenaccepted as fundamental even in the avowedly critical analyses of Nome.9

The claim that criminal law is a species of moral philosophy is accepted atface value in order that the law can be depicted as formal and abstract.From this point of view the 'juridical form' (the free and autonomousindividual) is seen as the product in the legal system of specific economicand social conditions The critique is then driven by an examination of thecontradictions in the economic base of society The juridical form can becriticised from a sociological point of view for being reductive of thecomplex social conditions and pressures that in fact determine humanactions The significant point is that in both cases it is taken for grantedthat moral philosophy and criminal law are different levels of the samediscourse The law is thus regarded as no more and no less than theelaboration of the fundamental philosophical or normative conceptswhich are the terms in which the relationship between state and the free

8 Fletcher 1978, p xix See Nelken 1987a, p 142 for the natural affinity.

9 Nome 1991, ch 1; 1993 chs 1 and 2 For an extended criticism of this position, see Farmer 1995.

individual is to be worked out It is assumed that the route to a bettertheoretical understanding of the criminal law follows from the clarifica-tion, or critique, of those same concepts But is this necessarily the case?Why should we begin with this conceptual structure? The problem withtaking this as a starting point is simply that it is too narrow, leaving toomany questions unasked There may be an affinity, but surely under-standing of the criminal justice system would be improved by also askingwhy this should be the case Where does this affinity come from?

It is clear that it is not 'natural' The relationship between liberal moraland political philosophy and the criminal law would seem to be a product

of the struggle against absolutism in the eighteenth century Repressiveand violent laws and institutions were attacked by reform-mindedphilosophers and lawyers In Europe this led to the drawing up of the greatpenal codes of the Enlightenment according to new measures of restraint,certainty and humanity in punishment.10 Legal limits were imposed onthe exercise of power in the same period as the boundaries of the modernnation state were drawn, establishing a range of both internal and externalconstraints on sovereignty The demand that the criminal law respect theprinciple of legality, that the criminal process be subjected to rules andconstraints, and that punishment be administered only in measured anddeterminate amounts, set the terms of the compact that was establishedbetween the criminal law and modernity.1 J This very history, if we accept

it, suggests that this is far from being a 'necessary' relationship - only that

it has been perceived as fundamental to a certain characterisation of themodern state Even if we go so far as to accept that the relationship isdesirable, this tells us nothing about how the practices of criminal law arerelated to philosophising about state power and punishment Indeed,much of the available evidence suggests that they have little to do witheach other Philosophers have pointed out that the doctrine of the criminallaw frequently fails to meet the criteria of philosophical adequacy,12 andtheoretically minded criminal lawyers complain that judges and othercriminal justice professionals show little enthusiasm for conceptualclarification or philosophical rigour.13 And if we look to the sociologicalliterature, we find many studies which demonstrate that the 'justice' in the

10 See von Bar 1916, chs 9-15.

11 See Foucault 1977, pp 74-5 Foucault's work dramatises the dubious connection between modern systems of punishment and civilisation We should note that, in the same period, 'moral' behaviour came to be conceived of as the following of rules rather than the pursuit of the good This suggests another basis for the natural affinity See Macintyre

1985, pp 118-9 12 Duff 1987.

13 Willock 1981 points out that Scottish judges have failed to respond to Sheriff G H Gordon's conceptually sophisticated account of the Scottish criminal law (1967 and 1978) Lacey 1985 argues that the judicial reception in England of elaborate conceptual analyses of the law suggests that academic lawyers overestimate its importance.

criminal justice system is a product of bureaucratic pressures rather thannormative or philosophical ideals.14 Obviously, this must lead to aquestioning of the relevance of academic debate over the philosophicalfoundations of the criminal law.15 In spite of the continuing conflictbetween judges and academics over, say, the subjective or objective

character of mens rea or the permanently unresolved state of the debate on

the punishability of impossible attempts, there remains a limited sense inwhich the criminal justice system continues to work rather effectively - atleast if the sheer number of people that are prosecuted each year is taken as

a measure Criminal law theory is caught in a position where it neitherreflects the state of criminal justice nor is able to engage with thecontemporary sense of crisis To be sure, moral philosophy may beimportant to the law as it is currently conceived, but it may not representthe only, or even the best, route to an understanding of that law.This suggests that there are serious limitations inherent in a study thattakes the criminal law conceived of as a philosophical system as the centralobject of study However, even as these arguments undermine anunderstanding of the criminal law as a form of moral philosophy, theyreveal how the territory of the law, and the types of questions that fall to beaddressed by criminal law theory, has already been marked out in a waythat establishes moral philosophy as the only legitimate mode of analysis.Important boundaries are established from the outset between theory andpractice and between criminal law and criminal justice Barriers have beenerected to prevent other types of philosophical or theoretical understand-ing being brought to bear on the criminal law Most contemporary writing

on the issue of crime and the criminal law respects these boundaries,drawn by criminal lawyers, that establish the autonomy of the law.16 Yetthis autonomy is difficult to sustain In the modern nation state thecriminal law is expected to be both an instrument of modern governmentand a barrier between state and citizen The theoretical understanding ofcriminal lawyers is only achieved by the blurring of the distinctionbetween these two functions or, more commonly, by ignoring thedistinction altogether

For example, where the connection between the incidence of crime andparticular instances of criminal policy is addressed, the criminal law isregarded both instrumentally, as the means by which policy can beimplemented and, more neutrally, as something that escapes reduction to

14 There are numerous studies in this area See, for example, Carlen 1976; McBarnet 1981;

McConville et al 1991 Much of this literature is reviewed in Nelken 1987a.

15 Or at least there is a problem with the particularly impoverished notion of philosophy that

is adopted, where analytical clarity often seems to be confused with philosophical analysis.

For an example of this, see Shute et al 1993.

16 This has been mapped out at some length in Nelken 1987a and b.

the simple terms of policy In this way it manages to be both less and morethan particular instances of its application, conceived of either as aconduit through which criminal policy must necessarily pass, or as part of

a framework of normative rules From neither perspective does it appearthat the criminal law is regarded as part of the problem of crime Thelimits of the law are only seen either in practices which can be regarded asmarginal to or outside the law (such as the existence of discretion or socialinequality) that are said to undermine it, or in the terms of the normativephilosophical question which asks which types of action are harmful orblameworthy This allows the law to be seen as an autonomous philo-sophical system rather than as something that has its origins in particularpractices or policies or systems of enforcement When policies fail they,and not the criminal law, are to blame To the criminal lawyer, thequestion of enforcement is seen as something beyond the law, to becarried out by the agencies and institutions of criminal justice.17 The lawstands above and beyond the sphere of public debate and policy This,moreover, reinforces the ambitions of criminal lawyers for whom thecriminal law must be more than just an instrument or tool of government.Paradoxically, when criminal lawyers acknowledge the importance ofcriminal justice this is in order to support the belief that the law iscompletely autonomous The modern criminal law is presumed to pursuecertain ends, whether these be deterrence, retribution or rehabilitation, orsome combination of the three, no matter how incompatible they appear

to be.18 In these terms it would then appear that the important questionthat the law would have to answer would be that of whether or not itachieved these ends, or as it is more conventionally put, whether or not itworked However, while it is normal for these ends to be recognised bycriminal lawyers - in an acknowledgement of the social functions of themodern law - it is extremely difficult to trace their exact status in criminallaw doctrine There is a crucial slippage by which they disappear from thediscussion After an initial appearance they are not subsequently regarded

as relevant to the question of guilt or responsibility, but only to sentencing

or punishment - which are not conventionally treated as part of criminallaw doctrine.19 Difficulties or inconsistencies can be deferred to thesentencing stage in order to preserve the theoretical purity of the law, andthe blame for the failures of criminal justice can be placed elsewhere Theimpression is reinforced that these failures - in prosecution, in enforce-

17 Where the question of enforcement arises at all, it is in terms of the enforcement of morality For the classical expression of this, see Devlin 1965.

18 See e.g Smith and Hogan 1992, p 3; Ashworth 1995, pp 14-17 although he moves to an emphasis on the importance of the values that the law should enforce On incompatibility, see White 1985, pp 194-203 19 See esp Nome 1993, ch 10.

merit, in the courts, in punishment - are a failure of institutions, policy,procedure.20 Law becomes an issue in criminal justice only in relation toquestions of procedural justice- the legality of police action, of detention,the admissibility of evidence Amidst the wringing of hands and pointing

of fingers, the criminal law is rarely, if ever, implicated This is aremarkable state of affairs: the institutions that enforce the criminal laware guilty; criminal procedure has taken a wrong turning; sentencingpolicy requires reform and rehabilitation But the criminal law, it wouldappear, has little or nothing to do with criminal justice

It may, of course, be the case that the criminal law is perfectly conceivedand ideally adapted to the social demands that are placed on it This seemsunlikely, however, and at the very least worthy of demonstration Inaddition, as I suggested above, there are signs that criminal lawyers arethemselves unhappy with this structure of institutional purposes and wantthe criminal law to be rather more, in order to preserve something of itsperceived social significance This extra factor has been sought either inthe values that the criminal law is said to protect or reinforce, or in somesocially significant practice, such as 'blaming', that is said to represent thecore of the expressive function of the law.21 However, there is littleevidence of the consensus that must lie at the heart of what criminallawyers say about values, or indeed of any agreement over the core valuesthat the law is said to protect It is rather as if thinking about the law iscarried out within such extraordinarily narrow confines in order to protectthe illusion of consensus Equally, it is hard not to be sceptical aboutattempts to get back to basics in criminal law, for in the modern criminallaw such expressive functions must always be performed by and throughinstitutions If we blind ourselves to the operation or practices of theseinstitutions it is unlikely that anything of the experience or meaning of themodern criminal law will ever be captured In view of this, it is even morestrange that we should be bound by rigid theoretical distinctions betweenthe different parts of the criminal justice system, so that the way in whichjustice is discussed in the texts of the criminal law is far removed from theday-to-day operation of the system

This raises a number of important questions for the future of thecriminal law, questions which criminal lawyers do not or will not face,

20 Interestingly, this is no less true of historical work A recent history, Wiener 1990, tells the story of the move from 'moralism' to 'causalism' in Victorian penal thought, and in particular the emergence of penal policy in the modern sense Although it is argued that the penal law is transformed - through, for example, the creation of new categories of offenders and offences as the result of changes in criminal policy - the end result seems simply to be the tracing of the emergence of the category of policy as something separate from law The question of transformation in the criminal law is left largely unexplored.

21 On values, see the summary in Ashworth 1995, ch 2; on the expressive function, see White 1985.

preferring to relegate them to the realms of policy or process, so better topreserve the theoretical purity of the law Foremost amongst these is thequestion of why there is a split between the criminal law and policy, orbetween criminal law and criminal justice This leads on to the question ofhow can we conceive of justice in the criminal law.

There have been attempts to bridge this gap, to make contextual orinterdisciplinary studies of the criminal law Indeed, it has been arguedthat the criminal law offers an unparalleled prospect to those interested ininterdisciplinary study because of its unique combination of the technical,institutional arrangements, procedural and evidential rules, and norma-tive theory.22 But, if it is reasonably straightforward to point to thecomplexity and diversity of modern criminal justice systems, it has provedrather more difficult to produce a genuinely interdisciplinary theory of lawthat does justice to that complexity It is clear that the promise ofinter-disciplinary or contextual study remains unfulfilled While reference

to the need for interdisciplinary or contextual study has practicallybecome a fetish - who today dares to deny the importance of 'context'? -the issue of each new text containing an expanding set of references tophilosophical, criminological, psychological and historical works, is ac-companied by a growing confusion about how it is all supposed to fittogether It is as if there is the hope that, by bringing along an ever greaterpart of the context, understanding must magically follow The danger ofaccording too great a status to context may simply be that of ending upwith increasingly diffuse accounts of social control As the context isbrought in, the law is inexorably reduced to that context.23 Yet this leaves

us with something of a conundrum Sociological approaches to the law interms of a process of 'criminalisation' are said to miss something of thenormative qualities of the law,24 while those same normative qualities areunderstood not to be susceptible to study except in terms of precisely themoral philosophy that established them in the first place!25 The dividebetween criminal law and justice is reproduced at the level of theoreticalunderstanding, as the studies of context reinforce the idea that there is acore understanding of law Once again we find that boundaries have beendrawn in advance by the philosophical conception of the criminal law

22 See generally Tur 1986, pp 195-9.

23 See Cohen 1989 Cf the reductive approach of Lacey et ah 1990, pp 7-12, where the

multitude of practices of social control that are 'analogous' to the criminal law are listed.

24 e.g Lacey 1995 on the process of criminalisation Why should the sociological category of

criminalisation be accorded an a priori status? See also Farmer 1996, pp 59-62.

25 See also Nelken 1987a, pp 140-3; 1987b, pp 107-9 This reinforces an important point about the nature of context, for to study context is also implicitly to reinforce the idea that there is a core, that contextual study can be used to prop up the sense of the discipline This idea of the core and the margin is something that also returns in relation to the core values that the law is said to protect.

Yet even in the face of these limitations it would surely be going too far

to jettison the interest in theoretical or philosophical explanation entirely,treating it as so much ideological baggage The criminal law mayultimately be a mode of social control, but a recognition of this does notfree us from the obligation to examine the logic of the law A study of thecriminal law cannot begin by denying those specific features that mark outlegal forms of regulation If nothing else, the fact of the continuingstrength of the belief in the philosophical foundations of the criminal lawmust draw our attention Its distinctive relationship with the liberalprinciples of autonomy and responsibility must historically have played apart in the formation of a certain complex of relations between political,legal and penal institutions But to state the problem in this way is already

to diminish philosophy's claim to foundational status It can no longer beassumed that philosophical concepts are straightforwardly reproduced incriminal law or that the relationship between moral philosophy and law isits defining characteristic This points towards something else, namely therecognition that the criminal law is, above all, a practice that has its ownhistory

But what does it mean to argue that the criminal law has its own history?The most immediate consequence is that we must begin to look at thecriminal law as a practice that is independent from the practice ofphilosophy Rather than regarding law and philosophical reason asconcepts that stand above criminal justice and outside history, we mustlook at legal practices and the types of rationality that develop in andthrough these practices Reflections on the nature of law do not occur in ahistorical void, but are attempts to order and make sense of the changingforms of legal practice They are the means by which a particular field oflegal practices is organised Thus the history that interests us is the history

of changes in the ways of thinking about, or reflecting on the law Thispoints to the second consequence This, to paraphrase Macintyre, is thatthe philosophy of the criminal law is always dependent on the history ofthe criminal law.26 In the terms in which we have been discussing it, theproblem for the philosophy of law is to explain the reasons for which, at aparticular moment in time, legal practices come to be defined in a certainway.27 A critical theory, a theory of 'critical positivism', must thereforebegin from the analysis of this complex of practices, to look at how the

26 Macintyre 1985, p 268 'The philosophy of physical science is dependent on the history of physical science But the case is no different with morality' See also Ewald 1985, p 133 'The philosopher must conceive of himself as himself belonging to the history of law, and history itself becomes the only manner of thinking of the law And, correspondingly, the law does not exist as an object exterior to the philosophy that defines it' (my translation).

27 Ewald 1986c, p 138.

object of the criminal law is defined and the theoretical boundaries of thefield maintained If we accept that there is no transcendent reason, thenthere can be no retreat from historicism.

The study of the doctrine of the criminal law must therefore begin byshifting attention onto the relationship between legal practices and moralphilosophy itself It should look at its origins, the ways that this has beeninvested with significance, and its actual significance to the operation ofthe criminal justice system This entails looking at it as one practice within

a complex of practices - the philosophising of the criminal law in the field

of the administration of the criminal law and criminal justice - where therelationship is not given, once and for all, but must always be in theprocess of re-establishing itself.28 The true significance of each of thesepractices in a specific period must be traced and weighed against the

others The organising concepts of the criminal law do not have an a priori

existence, springing fully formed from the head of some god-like opher They emerge from institutional practices and their study mustbegin by looking at their uses in this system of practices.29 In these termsthe question of'responsibility', for example, can no longer be understoodsimply as the moral philosophical question of specifying the conditionsunder which an autonomous individual may be held culpable for certainacts, and is therefore a justifiable object of state punishment The question

philos-of who is subject to the law and under what conditions has also to be seen

as a question that is subject to the constraints of organisation, power andculture The language of legal responsibility has to be seen as one way inwhich the relations between legal and political organisation are me-diated,30 and as one, but only one, of the organising concepts of thecriminal justice system To avoid the reproduction of an artificial barrierbetween law and context, this must be formulated as part of therelationship between the law (narrowly conceived as legal doctrine) andlegal practices By systematically attempting to specify the relationshipsbetween different areas of practice, it is possible to begin to develop acritical understanding of the conditions that shape the modern criminallaw The study of the practices of the criminal law and criminal justiceopens a different perspective on the narrow theoretical formulations thathave been taken for granted for too long.31

If we take legal practices as our starting point, the concept of law is notbound to any one type and we cannot assume the existence of any core

28 Deleuze 1988, pp 32-44 29 Nietzsche 1969, p 77.

30 'Penal law concerns those aspects of criminal material that can be articulated: it is a system

of language that classifies and translates offences and calculates sentences; a family of statements that is also a threshold' Deleuze 1988, p 32.

31 SeeFoucault 1991c, p 75;Ewald 1985, p 133;Pasquino 1991, pp 247-8; on beginning from practices, see also Teubner 1989a and 1989b.

rules or values The idea of historical change, in definitions, institutionsand so on, is built into our account There are many different types of legalorder or jurisdiction, each of which is articulated around a particular legalrationality Each system of law thus includes, 'not only a certain normativecontent, a set of special rules depending on the criterion of legalitypeculiar to the system considered, a way of practising legal judgement but also a body of doctrine through which the whole set of these practicesare reflected and regulated ,'32 The study of the law thus requires arecognition and tracing of the positivity of the modern law, the particularcontent of the criminal law and the terms according to which legal rulesare recognised as being valid.33 But there is a further question involved,taking this question of rationality beyond the normal terms of legalpositivism,34 to ask a series of'second order' questions about the law andlegal authority This 'rule of judgement', as it has been termed, is thussomething that is wider than the simple idea of legal validity or even legalprinciple:

Statute, doctrine, and case law derive from it and express it; but it can never bereduced to these It is a sort of necessary ideal on the basis of which legal practicesreflect the constraint that binds them, their unity and their systemacity Constant-

ly reformulated, it never ceases to depart from itself through the judgements thatexpress it.35

The legal institution defines the boundaries of its jurisdiction and rendersintelligible the practices within that system, but it is at the same time itselfdefined and constrained by its capacity to do so.36 It is in this continualdeparture from itself that the rationality of law is marked out as somethingthat has a history and that produces history It cannot be reduced topositive law or doctrinal formulations of, say, the determination of thevalidity of legal rules or the competence of certain legal actors Equally, itcannot be abstracted from the legal and social practices that shape it Itopens up a more complex relationship with context, for we are notconcerned solely with the question of the identification of the rule ofjudgement, but also with the conditions and relations that make success-ive rules of judgement possible In more conventional terms, it can be

32 Ewald 1988, pp 43-4.

33 e.g 'The only sound proposition is to cleave persistently to the single-minded goal of elucidating the existing penal law, asking only - which theory will maximise our understanding of that law?' Hall 1960, p 2; cf Tur 1993.

34 e.g Hart 1983; Williams 1955.

35 Ewald 1988, p 38; see also 1985; 1986b Introduction; 1986c; 1987 Cf.Foucault 1991b,

p 5 4 where he discusses criteria o f formation, transformation and correlation for discourses.

36 Cf Pasquino 1991, p 247: 'an intelligibility which at once traverses and is incorporated in these practices'.

argued that the formulation of the 'rule of judgement' in these termsentails the recognition of the historical nature of legal practices Theconcern with the identity and the conditions of possibility of particularrules of judgement allows the occupation of a position that neither whollyadopts the law's point of view, nor wholly collapses it into the social.

If the task of legal history and philosophy is thus the tracing of the waythat these abstractions are made, viewing them as reflexive and authoritat-ive accounts of the legal system at a particular point in time, then,schematically, the 'context' of legal theory is to be sought in the responses

to three different questions about the nature of legal order The first is thequestion of what is produced by legal order This raises the question oflegal theory's relation to its past Looking at the practice of theorisingabout the law, it is necessary to be sensitive to the way in which certainquestions are formulated There must be an awareness of shifts inemphasis and focus that are often concealed by conceptual vocabularieswhich stress continuity and authority or which claim a fundamentalrelationship between criminal law and moral philosophy Second, there isthe question of the conditions of legal order This requires study of therelationship between legal theory and the practices of the legal system: thecorrespondences that are established, the practices that are given priority,the terms in which they are represented and so on But the point that theintelligibility of practices need not depend on their conformity to reasonmust be underlined The 'rationality' of law may be partial or incomplete,

in the sense of not treating all legal practices equally, or drawing onnon-'legal' or non-'rational' sources.37 The decisive consideration is thatthey be regarded as having the force of 'truth' for that legal system Thenotion of the rule of judgement, 'juris-diction', must be seen as referring

to legal culture, or, as it will be referred to throughout this book, legaltradition Third, it is necessary to look at the broader significance of therule of judgement This is the means by which the law responds to theprocess of social change The functions of the criminal law may change, orlegal institutions may be re-ordered in response to the perception of newsocial problems Although the law may be co-extensive with social field,the institutions of the law are not always distributed with equal force orimpact over that field The social field, in turn, is composed of a network

of rationalities, intersections and interferences which may produce asubtle impact within the rationality of the law.38 This demands an

37 A perfect example of this can be found in the idea of the common law tradition There is a developing critical literature on this See notably Goodrich 1986 ch 5 and 1992, p 8: 'It will be argued here, however, that history is the reality (the trauma) of legal practice and tradition the narrative logic of its development'; Cotterrell 1989, ch 2; Murphy 1991; Lobban 1991; Postema 1986.

38 Foucault 1977 See also the discussion in Murphy 1991, pp 185-94 on the adjudicative episteme of the common law Cf Rose 1995 arguing for a stronger political sociology.

examination of how the legal system manages its relations with othersocial institutions and maintains its own autonomy It is, in short, aboutthe order of law.

It should by now be clear that in concentrating on the issue ofboundaries in the criminal law, we have been returning to and developingthe idea of a legal cartography introduced by the quotation fromBlackstone Our concern is the mapping of a particular legal field and theshifting relations between the forces that comprise and define that field.39

In mapping these various relations the aim is to introduce the dual criticalelements of displacement and replacement Displacement comes fromthe concentration on practices, shifting the normal starting point, alteringthe perspective or the terms of representation The purpose of displace-ment is to search out inconsistencies and incompleteness in the law: thatwhich is not explained and why, or the assumptions that structure legalargument In the terms of one of the more conventional formulations ofcritical legal studies this maybe expressed as the recovery of the repressed

in the history of law The theorist must seek out the histories that have notbeen told, and discover sites from which it is possible to criticise the law.This comes through the multiplying of the representations of the law.40

And a crucial, often overlooked, element of this process of displacement isthat of searching for continuities where we have been taught to see ruptureand vice versa The field of the law must be mapped out, to explore thetensions within and between the different fields, and through a series ofsuch displacements to develop our understanding of the nature and theboundaries of the legal order The second element of this 'criticalpositivism'41 is that of replacement, reintroducing the displaced into areflexive engagement with the rule of judgement It is never sufficient just

to develop alternative understandings The law as an institution does notchange freely, and its authority is founded on the policing and control ofmeaning The task of critical positivism is to question the operation ofthese 'truth-games' in a given system, to understand the limits of therationality of law and uncover the spaces where there is room forargumentation or resistance Only then does it begin to be effective toconfront the law with alternative and 'better', in the sense of morecomplete, accounts of legal rationality, by playing on the gaps, flexibilitiesand weaknesses of the law

This can be illustrated by a brief consideration of the famous passage in

39 Deleuze 1988, pp 34-5 describing the diagram as a series of relations between discursive

and non-discursive formations, and the social theorist as the cartographer mapping the relations between them.

40 Cf R W Gordon 1984 and Goodrich 1990 ch 2 offer different versions of the telling of alternative or suppressed histories See also Macintyre 1977, pp 453-72.

41 Cf Ewald 1986c, describing critical positivism in rather vague terms as the question that law (judgement) must ask of legality (validity).

his Historical Law Tracts where the philosopher-judge, Lord Kames, drew

a comparison between the study of the law and the course of the river Nile:When we enter upon the municipal law of any country in its present state, weresemble a traveller, who, crossing the Delta, loses his way among the numberlessbranches of the Egyptian river But when we begin at the source and follow thecurrent of the law, it is in that course no less easy than agreeable; and all itsrelations and dependencies are traced with no greater difficulty, than are the manystreams into which that magnificent river is divided before it is lost in the sea.42

This poses the relation between the land, history and the law in aparticular way The legal historian was the traveller swept down to the sea,understanding of the present coming only as a result of the cultivation of ahistorical perspective For Kames the purpose of history was to unifyunderstanding, as the passage through time revealed the conceptualcoherence or unity of the law Just as in the old philosophical conundrumthe river is never the same river, the common law can both change and bethe same, linked by the experience of its historical journey Goodrich hasargued for displacement, that this projection maps only one experience,excluding the possibility or validity either of alternative experiences oralternative forms of mapping.43 However, although there may be alterna-tive ways of traversing this landscape, or of mapping it, the river remainsthe central, defining feature, and we should neither ignore this nor straytoo far from it The displacement, in this sense, must continually bebrought back to the map that it challenges But there is a second importantsense in which Kames might be understood As a metaphor for history, theriver passes through the legal landscape, transforming it as a river mayerode a rock This process of change and transformation must bedescribed The space of criminal jurisdiction emerges from the relation-ship between the river and the landscape

The criminal law is, in a very real sense, the 'law of the land' Ourconduct is ordered by its precepts, our transgressions punished Theguilty cannot run from the 'long arm of the law' These are questions ofcriminal jurisdiction at a given place and time They concern thesubstantive content of the criminal law: the types of behaviour that arecensured, the types of punishment and the relationship that is constructedbetween the two No matter how abstract the formulation of the law, it cannever be completely disembedded from social space These, then, are alsoquestions of the application of the law - who is subject to and of the lawand under what circumstances - questions that are obviously also

42 K a m e s 1 7 9 2 , p p vii-viii Cf Maitland 1 9 1 1 , p 4 9 3

43 Goodrich 1990, p 17: 'The pattern of such development, of the common law as a tradition, is most usually presented as one of linear emergence: the law is a route, a path across time and across experience'.

dependent on the existence of an apparatus that is capable of enforcingand adjudicating on the law These questions of jurisdiction relate to thepolicing of the boundaries of the permissible, and are also questions of theboundaries and internal ordering of the legal system This draws a strongparallel with the first sense of Blackstone's metaphor We must attempt tomap or describe the physical apparatus of the criminal law as it is inscribed

on a particular physical space We must look at the way in which power isactually exercised and the way that this changes over time We areconcerned with the changing physical organisation of the law in territorialspace

Yet this alone would never be sufficient Alongside these 'physical'questions, we are concerned with what might be termed the 'metaphys-ical'.44 Criminal jurisdiction also concerns the various criteria according

to which the conceptual structure of the law is organised This is thequestion of legal rationality, the legal order's reflexive account of itself, theway that it renders intelligible the diverse practices of the system Theconcern is not simply with where boundaries are drawn but how they aredrawn, and the relationship between this and the internal distribution offorces within the legal system Boundaries are related to the legallandscape that they seek to contain As in the case of maps, this is not only

a question of interpretation of the landscape, but also raises the issue of thepower to speak the law, and the means by which the process of definition iscontrolled The law establishes the official representation of that land-scape, the one that is considered to be the true representation This is thequestion of legal authority, both in the narrow sense of the building of asystem of precedent, and in the broader one of the establishing of anauthoritative account of the origins and operation of the legal system This'metaphysical' sense also involves questions of the application of law inspace and time The map of the law creates an imaginary space withinwhich it operates This is none other than law's empire: the space withinwhich law is seen as the fundamental social institution, within the bounds

of which its truth holds sway over those of economy, politics, science It isalso typically the nation More than just geographical space, it is a way ofimagining a shared way of life, common values and community Thisspace is what marks out the law, or a particular legal tradition, as not onlybeing distinct from its neighbours, but very probably also superior tothem.45 Existing in the continual present of legal practice, its imaginarytime is a history that tells the story of aging, of shared development, oftriumph over adversity This map of the law is complex The task to be

44 Goodrich 1995, ch 1 '[T]he law depends upon a geography of mental spaces, which cannot be reduced to its physical presences, its texts, or its apparent rules' at pp 8-9.

45 B Anderson 1983; Goodrich 1992, pp 9-10.

faced is, thus, the complex one of trying to build a critical understanding

of the boundaries of the criminal law, the interaction of the physical andthe metaphysical, through a form of historical jurisprudence

It is clear that, in challenging the terms of the representation of the law,

we are ourselves involved in the process of representation We face aquestion that was already familiar to Blackstone How is the 'academicalexpounder' of the law to approach the subject? The crucial argument isthat in reconceiving the question of the boundaries of the law, we mustrestore the sense in which this is a question of the means by which thecriminal law organises and protects its territory over time And if we do notvindicate the established representations of the spaces, structures andboundaries of the law, then we are at least bound to study the process bywhich they have been drawn We must remain truthful to the features ofthe landscape of the law, though our choice of map will, of course, depend

on what we wish to conceal or reveal We may, and indeed we must,distort reality but we should beware distorting the truth

This, then, is an essay about the criminal law, written with the aim ofestablishing foundations on which a radical critique of the existingconceptual structure of the law can be built It is not possible to begin fromthose concepts and attempt to reshape,46 rethink,47 or reconstruct them.48

Such attempts, it seems, lead to repetition rather than resurrection Theapproach taken here is partial This is not only because it is critical of theexisting order and explicitly sets out to challenge the easy assumption thatthis or any other area of the law is exclusively technical in character, butalso because it does not pretend to deal with every area of the criminal law

as this is conventionally understood It is selective and argumentative.Examples are chosen, and, by the same token, topics are omitted, for whatthey can contribute to the argument or reveal about the whole, rather than

to follow tired conventions of organisation and exposition But thegreatest change is in the treatment This deliberately cuts across thecategories that normally structure thought about the criminal law, toprovide a more detailed historical account of the development of legalconcepts and methods It does not, and indeed cannot, touch up some ofthe more glaring inconsistencies of case law or doctrine It can produce norecommendations for legal reform Rather, it seeks to challenge the veryvalue and validity of this as a worthwhile academic activity Nor, it should

be stated, is this an attempt to produce a critical criminal law - whateverthat means - although the aims are no less critical for that There can be nosingle critical version of the law, and I have no desire to foster such an

46 Glazebrook 1978 47 Fletcher 1978 48 Lacey et al 1990.

illusion The aim is thus more limited - and more demanding It is todevelop a reading of the modern criminal law as a system of criminaljustice.

This is approached through two different claims The first is that it ispossible to reinstate the centrality of the question of the criminal law bybroadening our understanding of the meaning of law and legality - todisrupt the boundaries that criminal lawyers have drawn around theirsubject Just as studies devoted to the examination of the philosophicalbasis of the criminal law rarely consider the legal, institutional or historicalcontext in which criminal law is practised, so the literature on thesociology and social history of crime and punishment is rarely informed by

a legal understanding This book seeks to bridge this gap and so challengethe boundaries of the criminal law This is done initially through theargument that legality, and consequently the perception of the criminallaw, can only be understood within particular legal traditions It thenpresents a detailed reconstruction of the characteristics of the moderncriminal law, by tracing the practices that have developed within theScottish legal tradition While this sets a limit to the rationalism of law, it isargued that it opens up the historical analysis of legal practices in a newand critical manner

The second claim is that the interpretation and the application of thelaw cannot be viewed in isolation from the emergence and operation ofcertain modern institutions of criminal justice A central argument of thebook is that there is a fundamental shift in the jurisdiction and organisa-tion of the criminal law in the course of the nineteenth century,exemplified by the rise of procedure This is in turn reflected in a complexmanner in the definition and structure of the criminal law Particularconceptions of the subject and legal order are examined to show howcontemporary criminal law theory misrepresents the character of moderncriminal justice through its attachment to certain fundamental assump-tions about the foundations and nature of law The task for criminal lawtheory is to replace the vague assumptions of legal tradition with a broaderunderstanding of legal culture, thus incorporating a historical under-standing of the law and the contemporary criminal justice system.Finally, though this should not be necessary, something can be saidabout the choice of Scotland as the case study While this certainlyrequires no apology, it might help if there were a word of introduction Aswill be explained at greater length in the following chapter, the Scottishcriminal law is a system of common law - even more so than the Englishcriminal law To this extent, then, as a common law system that hasdeveloped with a distinctive character on the margins of Anglo-Americancriminal law, it offers both the opportunity to study the development of a

particular system, and a unique vantage point from which to reappraisecriminal law theory The development of Scots criminal law is thus ofparticular significance, and has been unjustly neglected by lawyers andhistorians alike But this is not a conventional comparative study Theprimary concern is to establish the importance of tradition to theinterpretation and understanding of the modern law In the case ofScotland, where there has long been a preoccupation with the preserva-tion of national identity in the face of the encroachments of alien ideas andinstitutions, a particularly strong sense of national legal culture andtradition has been constructed This can be of central importance to anunderstanding of the Anglo-American tradition of criminal law which hassheltered behind what are supposedly more universal and abstract ideas.The attraction, in part, is that it offers an inversion of the normal patternwhich asserts the identity of the Scots system solely in terms of differencefrom England - thereby denying the appropriateness of comparison TheScottish genius and character are said to have developed a singularcriminal law However, although many of the institutions are different,and may be unfamiliar, the patterns of development are broadly similarand both have been subjected to many of the same influences andpressures The masking of these similarities is itself worthy of remark, anddraws our attention to those other factors that are at work in the process ofthe interpretation and exposition of the law Finally, it remains only tonote that the detailed study of a particular national legal culture allowsissues of much wider relevance to law and legal theory to be raised, notleast because it poses the question of the boundaries of the law in aparticularly stark and revealing manner.

Scottish legal tradition

Introduction

A condition of the Treaty of Union between Scotland and England in

1707 was that the Scottish legal system, together with the educationsystem and the church, should remain separate administrative entities.The British state was thereby created.1 The study of Scots law isimpossible without some awareness of this fact This is not only because ofthe curious institutional arrangement to which the Union gave rise: theScottish legal system exists without its own legislative body and the BritishParliament passes laws that may be administered differently within thesame country It is essential because an awareness of this differencepervades every area and every aspect of writing, speaking and thinkingabout the law in Scotland It has been central to the development ofScottish legal culture and, to a lesser extent, a Scottish national identity.Whatever our feelings about nationalism in general, and Scottish nation-alism in particular, this circumstance cannot be ignored Consequentlyany discussion of criminal jurisdiction, although apparently technical incharacter, begins at and continually returns to this point

The Scottish criminal law has been shaped by its determination toremain independent from its English neighbour In other areas of the lawthe practical consequences of the separate systems diminished under theweight of economic and administrative pressures, and as legislationrevised or replaced much of the common law Not so with the criminallaw The more serious offences are still to be found in common law, notstatute There has been stubborn resistance to the idea of codifying thesubstantive law The system has its own courts, rules of procedure andevidence, and even penal system Perhaps most significantly of all, it is,unlike the civil law, completely self-contained, there being no appealoutside Scotland to the House of Lords on criminal questions Thisindependence has not occurred by chance but is the result of deliberateand hard-fought resistance on the part of Scottish lawyers, and writing

1 On the negotiations that preceded the Treaty on this point, see Levack 1987, chs 1 , 3

21

about the criminal law accordingly carries a special burden of hopes andfears Though frequently hidden behind a facade of technicality, much ofthe writing on Scots criminal law either assumes or celebrates thisdifference It may be expressed in the crude belief that Scottish law isbetter than English law, or, more usually, in an unreflective separatismthat assumes that being Scottish, and a subject of the Scottish legalsystem, confers certain benefits and that this should not be tampered with

or criticised for fear of endangering a hard-won independence Eitherway, this cannot be treated as irrelevant to our concerns

It is the argument of this chapter that there is a distinctive tradition inScottish criminal law The bulk of writing and speaking about the law - injudgements, comments and academic texts - is conducted from withinthis tradition and on the basis of assumptions that are rarely questionedbecause they are unseen and beyond argument Initially, at least, the term'tradition' is not being used in any technical sense, but has simply beenborrowed from the title of an influential pamphlet written by Lord Cooperand first published in 1949 This sought to provide a general introduction

to the distinctive features of the legal system He regarded the 'tradition'

as a distinctive body of legal principles and institutions linked to thehistory of the Scottish nation and the national character.2 It is this looseidea of a tradition, between history and conceptual reasoning, that I wish

to borrow By allowing us to give due weight to legal doctrine withoutneedlessly confining the terms of the analysis, it proves useful as both adescriptive and an analytic category This is, in an important sense, thetype of inversion of the normal process of analysing the law that wasargued for in the last chapter Rather than beginning by specifying acertain form of rationality and attempting to analyse the law in its terms,

we begin from an analysis of the distinctive practices of the tradition to go

on to examine the assumptions on which the tradition is based, and theway that authority is constituted and certain conceptual and theoreticalboundaries drawn It will become increasingly clear that the understand-ings of this legal tradition are central to our misunderstanding of themodern law.3 To approach our subject in this way is to address thequestion of the criteria of legality of the system - the rule of judgement.This is initially a question of the sources of law and the rules of validity,and so a natural starting point is the narrower question of the 'principle oflegality', or the rule of law In Scotland this has been discussed in the

2 In Cooper 1957, p 172: 'Scots law is in a special sense the mirror of Scotland's history and traditions and a typical product of the national character '; reprinted 1991 with re-assessments by M C Meston and W D H Sellar.

3 This is not to fall back on the antinomy between tradition and modernity discussed in Krygier 1986, but to argue that acknowledgement of the existence of tradition does not free us from the requirement of analysing their relationship with modernity.

context of the debate over the so-called 'declaratory power' of the HighCourt.

The inherent powers of the Scottish criminal law

The genius of our law rests on a principle diametrically opposite to that ofEngland; the Courts of criminal jurisdiction being authorised to punish crimeswithout any positive enactment.4

The principle of legality is declared to be fundamental to the modern law

It affirms the protection of individual autonomy by placing limitations onthe power of the state No judge or state official can be above the law Theycan only apply pre-existing and properly formulated laws The judge can

be no more than the 'mouth of the law'.5 This has a special application in

the criminal law, summarised by the Latin maxim nullum crimen sine lege

-no crimes without laws.6 While there is some dispute as to the origins ofthis term, there can be no doubt that it came to prominence in theeighteenth century as part of that movement that sought to restrictarbitrary royal power, and defend the absolute value of law.7 It is thusinextricably bound up with views of the modernity of law, and it hassubsequently been considered a fundamental principle of Western sys-tems of penal law that legal punishment can only be inflicted when the act

in question has been clearly defined in advance as a crime.8

For almost 200 years there has been debate over the application andscope of the principle of legality in the Scottish criminal law This hasfocused on the question of whether the High Court either does, or shouldhave, the power to 'create crimes' by declaring that behaviour of anobviously 'wrong', 'wicked', 'grossly immoral and mischievous' or 'crimi-nal nature' that does not fall under the existing heads of the law should be

4 Lord Justice-Clerk Hope in Rachel Wright(\809) in Burnett 1811, app VII, p xxix Cf for

England, 'All offences of a public nature, that is, all such acts or attempts as tend to the

prejudice of the community, are indictable' (Lawrence J in R v Higgins (1801) 2 East at p.

21) This is discussed below.

5 The expression comes from Montesquieu (1949, p 159) *[T]he national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable

of moderating either its force or rigour'; Hall 1960, ch 2, p 28: 'The essence of this principle of legality is limitation on penalization by the State's officials, effected by the prescription and application of specific rules.'

6 Hall 1960, p 27: 'it qualifies and is presupposed by everything else in penal theory'.

7 For discussion and history, see Pasquino 1991, p 237; Hall 1960; Glaser 1942 See also Cooper 1957, pp 199-200.

8 See e.g European Convention on Human Rights Art 7(1): 'No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.' See also US Constitution An 1.

regarded as punishable.9 This power has consistently been regarded as thefundamentally controversial aspect of the system This question isappropriate for our study because it runs parallel to the debate over theboundary between law and morality, the limits of law and the powers ofthe English courts, that has so preoccupied jurists in recent years.10 Thedebates are remarkable for the fact that they have very quickly settled intostandard patterns Most contributions do little more than repeat the basicterms of the argument, only updating the subject matter to include thelatest controversy The features of the Scottish debate are roughly asfollows.

The authoritative statement of the law, as in most other matters

criminal, is to be found in Baron Hume's Commentaries on the Law of

Scotland Respecting Crimes He refers to an 'inherent power' resting with

the court 'to punish (with the exception of life and limb) every act which isobviously of a criminal nature'.11 The leading case, and indeed the onlymodern case in which the court acknowledged that it was exercising the

power, is the case of Bernard Greenhuff 12 There is a string of more recentcases in which three broad types of judicial behaviour can be identified Insome there has been an implicit criminalisation of behaviour coupled with

an explicit denial that the court is using the power.13 Alternatively thecourt has affirmed that they consider that the power definitely exists,whilst declining to use it in the specific instance.14 The third possibility,which is perhaps also the most common, is that the court gives absolutely

no clue at all to the logic that is guiding its actions, although giving rise to astrong presumption that it is using the power.15 There have beendisapproving commentaries by a series of distinguished legal figures which

9 These terms are all taken from the judgements in the case of Bernard Greenhuff (1838) 2

Swin 128 and 236 The most complete account of the debate can be found in G H Gordon 1978, pp 23-43.

10 This is summarised in Ashworth 1995, ch 3; A T H Smith 1984.

11 Hume 4th edn 18441, pp 12-13 See also I, p 496; II, pp 168-9 and Bell's Notes II, pp 173-5 Unless otherwise stated references are to the fourth edition For a contrary view on

the permissible extent of punishment, see the case of Wright 1809 (above, n 4) where a

capital sentence was upheld.

12 Above, n 9 Although the case of Chas Sweenie (1858) 3 Irv 109 is sometimes regarded

as having created the offence of 'clandestine injury to women' See also the cases on

workmen's combinations referred to by the judges in Greenhuff'and by Hume 1844 I, ch.

24.

13 HMAdv v Martin 1956 J.C 1; For a recent example see R v HMAdv 1988 S.C.C.R.

255 14 e.g Grant v Allan 1987 S.C.C.R 402.

15 e.g Strathern v Seaforth 1926 J.C 100; McLaughlan v Boyd 1934 J.C.19; Ken v Hill

1936 J.C 71; to these may now be added Stallard v HMAdv 1989 S.L.T 469; 1989

S.C.C.R 248 in which the court held that marital rape could be considered a crime under the law of Scotland.

take their cue from the dissent of Lord Cockburn in the Greenhuff case 16

The current academic orthodoxy can be summed up in the following way

It is argued that the power runs contrary to the principle of legality - thatthere should be no crimes without laws - and that penal laws should bepromulgated in advance by the legislature It is further suggested that thepower is anachronistic, having ceased to exist by reason of desuetude, afeature which is also taken to demonstrate that it is ill-suited to adeveloped, modern system of law Finally it is pointed out that thecommon law system allows plenty of scope for development withinexisting principles This flexibility, or 'native genius', is normally depicted

as the distinctively Scottish characteristic of our system - and it is notregarded as something that conflicts with that all important principle oflegality The discussion will commonly conclude with either a plea formoderation on the part of the judiciary or a demand that they formallyeschew the use of the power, or, in especially controversial cases, both

It is not my intention to join this debate I do not want to take sidesbetween the relative values of legality and flexibility, or between academiccommentators and the judiciary Rather I want to argue that thisstandardised and repetitive debate is not worth joining because the twosides should not be regarded as offering real alternatives The debateshould instead be seen as a 'red herring' - that is to say, it is something that

is put in the plot of a story about crime to distract the reader's attentionfrom the really important clues This, of course, does not mean that it is of

no interest Its principal value, as I have already suggested, is as anintroduction to the values of the Scottish legal tradition The debateconstructs a false dichotomy between the ability of the law to create, interms of the declaratory power, and the principle of legality In otherwords, there is an implicit claim that the principle of legality is part of thesystem and should be the yardstick by which individual parts aremeasured Either practices conform with this standard or they areconsidered to be 'outside' the law The declaratory power is identified asbeing obviously in breach of this and therefore abnormal and so is safelyseparated from other 'normal' practices However, this reference to anabstract standard has meant that attention is directed away from theactual practices of the system, and thus from the meaning of legalitywithin the system The implication is that once the aberration represented

16 For nineteenth-century examples, see Alison 1825 and 1832, ch 39 on innominate offences; Lord Ardmillan (James Crawfurd) 1846, pp 313-46; for more contemporary accounts; see Elliott 1956; J Walker 1958; G H Gordon 1978; Willock 1981 and 1989; Jones 1990 Styles 1993 is a rare voice in defence of the power, but the arguments are depressingly formulaic and unconvincing.

by the power has been contained, either by not using it or by its abolition,the legalistic rationality of the system will be complete By not looking tooclosely at the practices, the protagonists of the debate are essentially inagreement over the nature of the law As an alternative, I propose thatrather than regarding the declaratory power as an anachronistic andisolated feature of the law, we should allow ourselves to look at thecontinuities, the features that are shared in common between the 'normal'and the 'abnormal' practices The power should be regarded as no morethan an extension of the standard practices, throwing these into sharperrelief.

This can be illustrated in a straightforward manner, by looking at howthe supposedly alien feature of'creation', associated with the declaratorypower, actually pervades the criminal law The law is shot through with abelief in the value of flexibility.17 In addition to the declaratory power we

can point to the apparent acceptability of what has been termed its de facto

use.18 There is also the manipulation of the terms of existing, apparentlyfixed, definitions,19 or the open expansion of the existing heads of crime tocover new situations.20 Judicial interpretation of certain crimes, such asbreach of the peace, is so wide as to catch almost any type of behaviour.21This is a feature of the law that is actively encouraged by criminalprocedure The form of the indictment need not specify which crime ischarged but merely relate facts which constitute 'an indictable crime', andcertain terms relating to knowledge or intention need not be specified butare implied in all indictments.22 And finally, right at the centre of the law

we find that such key standards as 'recklessness', 'intention' and causationare governed by an ill-defined and inconsistently applied notion of'reasonableness' 23

We can thus see that the main characteristic of the criminal law is itsrefusal of 'precise and exact categorisation',24 in favour of loose defini-tions and procedures that allow adaptation to the exigencies of particular

17 For a more detailed discussion of the following, see Willock 1981; Farmer 1989a; Jones 1990.

18 See especially Watt v Annan 1978J.C 443 and subsequent cases on shameless indecency

in Gane and Stoddart 1988 See also Stallard v HM Adv above, n 15.

19 e.g HMAdv v Wilson 1983 S.C.C.R 420. 20 e.g Milne v Tudhope 1981 J.C 53.

21 Christie 1990, ch 2.

22 S e e Criminal Procedure (Scotland) Act 1975 ss 4 4 - 8 , 3 1 2 consolidating the Criminal

Procedure (Scotland) Act 1887 ss 5 - 8 , 5 8 , 5 9 For an example of this, see Lord Advocate's

Reference (No 1 of 1994) 1995 S.L.T 2 4 8 ; 1995 S.C.C.R 177 where the charge specified

neither the crime that was being charged nor the mental state of the accused.

23 See e.g HMAdv v Khaliq 1984 S.C.C.R 483 For comment, see F a r m e r s / 1987 See now also the cases of Ulhaq v HMAdv 1990 S.C.C.R 593 and Lord Advocate's Reference

(no 1 of 1994) 1995 S.L.T 248; 1995 S.C.C.R 177.

24 Lord Justice-General Clyde in McLaughlan v Boyd above, n 15.

situations It might indeed be said that creation is inherent in the law.25 Atthis point, we run into some difficulties with the 'principle of legality' foralthough it is clearly not respected to the letter in the Scottish system,some writers obviously regard it as a value to which the law should aspire.And while one could hardly dispute the general terms of the argument infavour of the rule of law, an abstract and general standard such as this, thatdiverges markedly from the practice, cannot tell us very much about theactual criminal law What is surely more interesting is the fact that theorthodox view holds that 'flexibility' and creativity are in some wayconsistent with the principle of legality This does not mean that the law iscompletely indeterminate, but it does open up the possibility that whilethe principle of legality may not be fundamental to the modern law there isnone the less a sense in which the claim of legality is not completelymeaningless The principle of legality clearly takes on a specific meaning

in relation to the practices of the Scottish system To put this slightlydifferently, there is no reason to believe that the system does not makesense in its own terms If this coherence cannot be seen to derive directlyfrom the abstract principle of legality, then our next step must be to tryand understand the way in which the Scottish criminal law can beunderstood as a related set of practices The debate on the declaratorypower clearly alludes to the relationship between doctrine, procedure andinstitutional powers and it is in this network of relationships, rather than inabstract or universal terms, that we must look to understand the Scottishlegal tradition

This tradition has been constituted by the manipulation of certain keythemes, but before discussing these I want to answer two possibleobjections The first would be that the sheer lack of size of the Scottishsystem has constrained the development of criminal jurisprudence byallowing for the management of the system along more practical andinformal lines The objection would be, therefore, that I am attempting tomake a mountain out of a molehill My reply to this would be that,regardless of whether or not this is the case, (and I think that it is not),what is significant is that there is a continuing claim to represent a system

of criminal jurisprudence It is this claim that I am proposing toinvestigate Thus when Professor Walker claims that Hume systematisedand arranged in rational order the propositions of the criminal law,26 wemust ask along what lines and by what standards this, and subsequent,rationalisations were made The second objection would be that it israther obvious to point to the influence of Hume in the formation of the

25 As, of course, it is inherent in all law to some extent See generally Goodrich 1986, chs 5 and 6 26 Introduction to the 1986 reissue of Hume's Commentaries (1844).

Scottish criminal law tradition The Commentaries are a major work of

reference and have long been accorded 'institutional' status.27 quent writers are therefore bound to draw heavily on them This isundoubtedly the case and much of what follows will be a restatement ofcertain well-known characteristics of the Scottish system But the aim ofthis chapter is precisely that of taking these as objects of study Only bysubjecting them to critical examination, and understanding the historicalcircumstances in which they emerged, can we hope to arrive at anunderstanding of the actual working of the law

Subse-Native principles and native methods: the dominant tradition

It is contrary to the tradition and genius of our criminal law to deal with its basic

conceptions in vacuo By the application of our native methods to our native

principles it has proved possible to keep the law sufficiently flexible and elastic

to enable a just discrimination to be applied to the ascertained facts of each case,and sufficiently rigid to prevent proved guilt from escaping the just consequences

on any mere technicality.28

It is possible to identify four central and interlocking themes These arethe maturity of the system, independence and national identity, thecentrality and nature of the common law, and the existence of shared orcommunity attitudes towards wrong

In the following discussion I will attempt to show not only how thesethemes are central to the practice of law, but also the ways in which thetradition has constructed certain understandings of criminal law andjustice

Maturity

The Scottish criminal law did not reach maturity until the late eighteenth century.The Romanistic approach of Mackenzie's time had been followed by a period ofselective borrowing from the English practice, until by the time of Hume anarticulate synthesis had been achieved.29

The declaratory power as described by Hume is, we are told, tic:

anachronis-Two opinions are represented in Scotland, but for over a hundred years few, if any,responsible judges or advocates would have been prepared to urge that Hume'sstatement represents the modern attitude.30

27 See D M Walker 1985, pp 329-33; H Cockburn 1846, pp 196-223; For a contrary view of the meaning of an 'institutional' work, see Cairns 1983.

28 Lord Cooper 1950, p 428 para 4.

29 T B Smith 1961, p 95; see also Hume 1844 I, p 4 30 Ibid, p 100.